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  • Jun 05, 2012 @ 11:24am

    Re: Re: Re: Re: Marginal

    Since you fail to recognize that what you "describe" utterly fails to satisfy the criteria specified in at least 101 and 112 of our patent laws, it seems quite safe to assume the substantive requirements of patent law are not your strong suit.

  • Jun 05, 2012 @ 11:19am

    Re: Re: Re: Marginal

    Be careful. These "challenges" are to identify a patent that serves double duty, both describing and claiming the invention (112) and presenting in detail the full equivalent of a Manufacturing Data Package (bill of materials, dimensions and associated tolerances, necessary manufacturing processes, test procedures, etc., etc.).

    In other words, 112, in their view of the world, can only be met by the inclusion of a MDP.

  • Jun 04, 2012 @ 07:58am

    I am not one to plug products, but long ago I learned about a password manager known as RoboForm that I have used with good success. Passwords are a cinch since it includes a password generator capable of providing what I believe to be high strength passwords. The list can be encrypted to keep them safe should my computer be accessed by a third party, and the list can be replicated in a separate text file that can likewise be encrypted.

    What make the software easy is that when I click the name of a site it takes me to the site and automatically enters my user name and password, making logins quite easy.

    Certainly there are other similar products, and it might prove useful to give them a quick look. Cost is about $50, but it is worth every dollar and more.

    Just a thought.

  • Jun 02, 2012 @ 10:07pm

    Re: Myths and Realities about the myths and realities discussed here.

    "At the very least, I think the authors should provide some citations to back up their claims - not just provide conclusory statements as arguments."

    Please excuse by boldness in suggesting that reciprocity is in order. Moreover, I must admit being somewhat confused by the incongruity between your statement that there is a significant body of caselaw at hand, spanning several decades, demonstrating the chipping away of fair use, and then that there is a dearth of caselaw associated with fair use.

  • Jun 02, 2012 @ 09:14am

    Re: Re: Liability, "average-citizen downloaders", and pre-1972 recordings

    No, the music labels were not "terrified" that a lower award could be made if the infringement was indeed "innocent" in accordance with the requirements of specified in the law.

    Their concern was that the legal theory being promoted by her attorneys did not correspond to the law's requirements for "innocent" infringement (the issue dealt with copyright markings).

    A federal district judge in Texas agreed with her attorney's theory. The decision was reversed on appeal by the 5th Circuit Court of Appeals. The reveral was appealed to the US Supreme Court via a petition for a writ of certiorari, which the court declined to grant.

  • Jun 01, 2012 @ 08:34am

    Re: Re: Re: Re:

    Glad you got your clarification.

    BTW, I was not trying debunk the author, but only noting that in the area of obscenity there is so much subjectivity involved that in many circumastances what is and what is not obscene is not easily determined.

  • May 31, 2012 @ 09:06pm

    Re: Re:

    "Obscenity" is generally the legal term used, but words like "pornographic" and "hard core" oftentimes find their way into judicial opinions.

    Under Supreme Court jurisprudence, it is "obscenity" (even though ponographic [sometimes modified by hard core] continues to pop up every now and then) that is deemed to be unworthy of protection under the First Amendment.

    I believe you agree that the test is fraught with problems, many of which depend upon the "eye" and "sensibilities" of the one exposed to the material, i.e., matters that are subjective and not objective. This subjective element in my opinion extends to each of the three elements comprising the Miller test, and it is for this reason that the ability to say "Yup, obscene" is every bit as difficult to ascertain as is copyright infringment except in only the most egregious of cases.

    Interestingly, I do not recall the availablity of clearly obscene materials (which are excluded from First Amendment protection) over the internet ever having been discussed to the same extent as that of copyright infringement. I do not know why this is so, and do not believe that speculation would add anything of substance to the conversation. I must note, however, that this specific area of the law is not one I have studied to any significant degree.

    In sum, and as you note, it is the subjectiveness associated with sexually explicit materials that make them well nigh impossible to classify as obscene except in the most extreme of cases. What is deemed obscene in one geographic location may very well be considered as having significant artistic merit in another.

  • May 31, 2012 @ 09:41am

    Contrasting porn (child or otherwise) and copyright infringment by saying one is obvious and the other not is not altogether accurate. Pornography has three aspects that were developed in the Miller case (Miller v. California, Supreme Court, 1973):

    Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,

    Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, and

    Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

    Of course, the ubiquity of access via the internet to pornography that in some areas would pass the Miller test and in others would not poses a substantial challenge to the application of the law. Insofar as I am aware, only one circuit court of appeals has held that a national standard should now apply. As yet, the Supreme Court has not reconsidered the continued viability of the Miller test.

    Only Justice Potter Stewart has ever taken the issue head on with his well-know statement "I know it when I see it.", and his statement has never been accepted by others on the court.

    While most of what is typically considered to be child pornography would be viewed as such in virtually every community in the US, there still remain circumstances where it is either not so clear or else third party reactions idiotic beyond belief (Walmart turns in parents who took photos of their three very young kids playing in the bathtub...their children were removed from their home for a period of time).

  • May 31, 2012 @ 06:45am

    Re: Legal Fees

    The general rule in the US is that each party bears its own costs unless a statute provides otherwise or the court, applying principles of equity established via "court made" law, so-called "common law", determines that a case is sufficiently egregious that costs are appropriate under the circumstances.

    Some countries assess costs in favor of a prevailing party as a routine matter. The US does not. There are, however, arguments in favor of both approaches, and in many instances each can impose a heavy, and at times an even unfair, burden on the parties.

  • May 30, 2012 @ 05:17pm

    Re: Re:

    The new cites fill in the blanks on how to interpret the original article.


  • May 30, 2012 @ 11:36am

    Just curious if you have data showing that all of the notices you deem problematic are in fact directed at sites already authorized by the rights holder to host some or all of the content.

  • May 30, 2012 @ 08:29am

    Re: Re: Re: Re: Re: Re: please just give up already!

    The only one acting foolish here is you. Since you had no insight into my state of mind it is simply incredible you have assumed the power of onmipotence to tell me with certainty you knew for a fact what I was thinking.

    Given your inherent power, perhaps you can tell me what it is that I am thinking at this very moment.

  • May 29, 2012 @ 09:55pm

    Re: Re: Re:

    Again, no, the DMCA did not massively increase liability. What it did was provide sites a means to avoid liability they might otherwise face if they did the same thing in the physical world.

  • May 29, 2012 @ 09:49pm

    Re: Re: Re:

    No, the individual stated "1 or 2". I merely expanded the number (50 in this case, though it could have been stated even higher) in an attempt to demonstrate that even with more numerous downloads the labels were not focused on dowloaders (copyists). Theirs was a frontal assault on uploaders (distributors) of music.

    And, no, I did not reject his citations for the reason you believe. I did so because they had noting to do with the downloading of songs. JT and JRT were obviously persons with a lot of time on their hands in order to download the large numbers of music files that they placed in their resspective "share folders". It was the sheer number of files in these folders that caused them to show up on the radar screens of the labels, as was the case with the many others who found themselves on the receiving end of letters from the labels.

  • May 29, 2012 @ 09:37pm

    Re: Re: Re: Re: Re: Re: Re:

    No, my comments are generally directed to what the law "is", and not what it should be. I save what I believe it should be for debate within professional organizations such as the ABA committees on which I sit.

  • May 29, 2012 @ 09:27pm

    Re: Re:

    Just my musings, but I do not believe that people are dedicated to FB, per se, but to the utility it currently offers. Create a compelling, competitive site that offers even more utility and FB will rapidly become "so yesterday's news" (and especially if FB data can be readily imported). Same goes for all the other social media sites.

  • May 29, 2012 @ 12:34pm

    "Plagiarism is about denying creators attribution that is rightly theirs."

    Why are they rightly entitled to attribution? Attribution is certainly the right thing to do, but how is the original author materially damaged by another's failure to do so?

  • May 29, 2012 @ 09:53am


    Please see comment at #93.

  • May 29, 2012 @ 09:51am


    The operative words in your statement were "1 or 2 songs".

    None of the citations address this.

    I am the first one to admit being disgusted at those very few lawyers (many, if not most, of whom are fresh out of law school) who have decided to become "copyright ambulance chasers" as a quick way to turn a buck. Of course, I feel this way about all lawyers who fit this general description with regard to other laws as well. A couple quick examples off the top of my head are those in California who abused Section 17200 of the California Business and Professions Code (they were eventually sanctioned by the California Bar), as well as those who tried to shake down persons and companies regarding patent markings.

    In the matter of songs, the labels directed their efforts towards those who were distributing songs, and even then limited their efforts to those deemed the most egregious violators. JT held out for distribution a library of several thousand songs. JRT did the same. Of course, when confronted with their misdeeds these two did everything within their power to shift the blame elsewhere, one even going so far as attempting to throw others under the bus.

  • May 29, 2012 @ 08:11am


    Apparently my use of the word "downloading" was overlooked by you. It does help to read the question before dashing off a rant.

    You stated "Taking someones (sic) life savings away for an 'infringement' of 1 or 2 songs,...". Perhaps you would be so kind as to identify some of those who meet the criteria in your statement.

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